Kane v. Board of Appeals

• Decision Date: 12 December 2005
• Docket Number: No. 29, September Term, 2005.,29, September Term, 2005.
• Parties: James KANE, Jr. and Realty Development Group, Inc. v. The BOARD OF APPEALS OF PRINCE GEORGE'S COUNTY, Sitting as the Board of Administrative Appeals.
• Court: Court of Special Appeals of Maryland

887 A.2d 1060

390 Md. 145

James KANE, Jr. and Realty Development Group, Inc. v. The BOARD OF APPEALS OF PRINCE GEORGE'S COUNTY, Sitting as the Board of Administrative Appeals.

No. 29, September Term, 2005.

Court of Appeals of Maryland.

December 12, 2005.

Cary J. Hansel (Joseph, Greenwald & Laake, P.A., on brief), Greenbelt, for petitioners.

Bridgette Ann Greer, Assoc. Cty. Atty. (David S. Whitacre, Cty. Atty., on brief), Largo, for respondent.

Argued before BELL, C.J., RAKER, WILNER, CATHELL, HARRELL, BATTAGLIA and GREENE, JJ.

CATHELL, J.

This case concerns the interpretation and application of the Prince George's County Code, Title 17, Subtitle 11 Fire Safety ("County Code").¹ At issue are citations issued by the fire department to a landlord and its management agent, pursuant to § 11-162, for violations of § 11-161.² Petitioners (Realty Development Group, Inc. and James L. Kane, Jr.) appealed the citations to the Board of Appeals for Prince George's County, sitting as the Board of Administrative Appeals; the Circuit Court for Prince George's County; and the Court of Special Appeals. The Board, the Circuit Court, and the Court of Special Appeals found that the citations were properly issued. Petitioners filed a Petition for Writ of Certiorari on May 3, 2005, and we granted certiorari on June 16, 2005. Kane v. Bd. of Appeals, 387 Md. 465, 875 A.2d 769 (2005). Petitioners present three questions for our review:

"A) [W]hether the plain language of the Prince George's County Code precludes issuing Correction Orders to and otherwise penalizing the owners of the leased premises for the conduct of their renters involving the renters' personal property;

"B) whether the County Fire Code, as applied in this case, violates the Petitioners' rights to due process; and

"C) whether the County Fire Code, as applied in this case, violates the Petitioners' rights to equal protection under the law."

We hold that the plain language of the County Code allows the fire department to issue citations solely to the owners of the properties. Furthermore, we hold that the County Code sections in question, as applied here, did not violate the petitioners' rights to due process or equal protection.

I. Facts and Procedural History

Realty Development Group, Inc., ("RDG"), owns three rental properties located at 4204, 4205, and 4206 Knox Road, College Park, Maryland. James L. Kane, Jr., an agent of RDG, manages the properties (Mr. Kane is sometimes hereafter referred to as petitioner). As required by the County Code, the Prince George's County Fire Department conducts regular inspections of the properties.³

On March 30, 2000, Captain Steven Hess, a fire department employee, inspected the buildings. The tenant of unit 7, at 4204 Knox Road, allowed Captain Hess to inspect the apartment. Captain Hess determined that the unit was unsafe and later stated:

"The dangerous accumulations of trash and rubbish that I observed during my inspection was such that there was approximately a three foot pile high [of] newspaper, magazines, pizza boxes, other food type containers strewn throughout this [tenant's] unit to the point that he could open his door approximately a foot and a half to allow us entry to check the smoke detector, and in the event that [the tenant is] in his room and there is a fire in his unit the likelihood is that not only will the abundant accumulation of this combustible material not allow him to exit his unit properly, it will probably facilitate the fire to spread more quickly. I found that to be a dangerous accumulation not only for him but also for the tenants that reside in that building."

Captain Hess found that the conditions of the apartment violated § 11-161(a)(1). He also found that a room in 4205 Knox Road, used by a tenant as a storage closet, also contained the building's boiler and water heater. Captain Hess determined that the tenant's use of the storage room was a violation of § 11-161(a)(1) as it created "[d]angerous conditions which are liable to cause or contribute to the spread of fire in or on said premises, building, or structure, or endanger the occupants thereof." As a result of these findings, Captain Hess issued a "Correction Order," pursuant to § 11-161. The order named James L. Kane as the owner and it stated that:

"All storage rooms must be locked, supervised by fire sprinklers or be 100% empty and have a smoke detector. In addition, access must be provided to officials of the Prince George's County Fire/EMS Department to inspect these common areas of the property for hazards or appliances as the Fire Chief or his authorized representative may designate.

"The tenant in 4204 Knox Road # 7 must immediately clean all trash and debris from the unit in order to eliminate the dangerous conditions found in the room."

The form stated that both conditions were cited pursuant to § 11-161(a)(1). The order also provided that it was the "1st Notice" and that "the owner/manager must act immediately to correct the listed issues, prior to the next scheduled appointment," which was set for May 1, 2000. Captain Hess gave the order to a rental manager who refused to sign, acknowledging receipt of it.⁴

After his second visit on May 1, 2000, Captain Hess issued a "2nd Notice" to Mr. Kane stating that the conditions described on the first notice had not been corrected. In addition, this notice stated that "[f]ailure to comply could result in a $1000.00 fine and/or 180 days in jail upon conviction"⁵ and that the next scheduled appointment would take place on May 17, 2000. The manager again refused to sign the order. Finally, after inspecting the buildings a third time, Captain Hess issued a "THIRD and FINAL notice" on June 12, 2000. The final notice provided that the conditions found in the previous two occasions had not been corrected.⁶ Captain Hess gave the notice to Mr. Kane who refused to sign it.

Petitioner Kane filed a notice of appeal to the Board of Appeals of Prince George's County (the "Board")⁷ on May 10, 2000, challenging the Correction Order dated May 1, 2000. In his notice of appeal, petitioner Kane argued that he was incorrectly identified as the owner, he denied the existence of any storage rooms in the buildings in question, and stated that "[a]ny recommendation to a tenant in any building (4204 Knox Road, # 7) which concerns that tenant's particular personal habits should be directed to that tenant. Any correction order to a tenant should specifically describe the offending conditions and the alleged violation(s)."

On June 20, 2000, petitioner Kane filed a notice of appeal to the Board, challenging the Correction order dated June 12, 2000. In the notice, petitioner Kane again denied being the owner of the property. He also denied the existence of any storage rooms in the building. He acknowledged, however, the existence of the small room in which the furnace and hot water heater were located, but denied that the tenants had access to the room. He maintained his position that any complaints regarding the leased premises should be addressed to the tenants.

The Board held hearings on petitioners' appeals on June 7 and July 12, 2000. At the hearing on June 7, only petitioner Kane was present and he denied being the owner of the properties. The Board decided to postpone the hearing until the property owners were properly identified, notified and represented. On July 12, satisfied that all parties in interest were properly represented, the Board then conducted a hearing on the merits of the appeal. Petitioners (both RDG and Mr. Kane) were represented by the same counsel. Petitioners and the County stipulated that they had come to an agreement as to most of the violations for which the petitioners had been cited. Both parties asked for the Board to make a determination on whether the owners and agent of the leased properties alone can be cited for the violations created by the tenants.⁸ The Board heard evidence from petitioners including petitioner Kane explaining the situation in 4204 Knox Road # 7:

"That's a single sleeping room. I have no control over it. It's just basically . . . a rooming house building. I have no control over, in my view, the tenant so long as the tenant does not disturb other tenants, the tenant[']s matters do not spill over in the common areas, what the tenant does behind that door, as far as I'm concerned, is the tenant's business. Others don't like that then I think they should directly address their concern to the tenant."

The Board heard evidence from the fire department and made the following findings:

"1. James Kane, Jr. has a legal interest in the properties at issue.

"2. The owner of the property located at 4204 Knox Road # 7, College Park, Maryland, is responsible for removing all trash and debris from the unit in order to abate a dangerous condition and bring the unit into compliance with Prince George's County Code Section 11-161(a)(1) and 11-159.

"3. The room in dispute at the premises located at 4205 Knox Road, College Park, Maryland, constitutes a storage room and must be in compliance with Prince George's County Code Sections 11-161(a)(1) and 11-159."

The Board did not assess any fines against the petitioners at that time. Following that decision, petitioners appealed to the Circuit Court for Prince George's County. In the Circuit Court, petitioners argued that the Board's reading of the County Code was erroneous and, as applied, violated the petitioners' rights to due process and equal protection. Finally, petitioners argued that the statute was void for vagueness. On August 13, 2001, the Circuit Court remanded the case to the Board and "ORDERED that given the equal protection concerns raised by the Petitioners, the Board of Appeals of Prince George's County, sitting as the Board of Administrative Appeals shall determine why the tenants were not cited for the violations at issue in this matter."

On remand, the Board held meetings concerning...